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Questions raised over use of private practice lawyers in legal aid

Questions raised over use of private practice lawyers in legal aid

Supplementing private practice lawyers with salaries lawyers could help rescue Australia's legal aid system from its impending demise, a new report suggests.

SUPPLEMENTING private practice lawyers with salaries lawyers could help rescue Australia's legal aid system from its impending demise, a new report by PricewaterhouseCoopers suggests. 


Salaried lawyers can provide a relatively low-cost alternative to the briefing of private practitioners, the newly released report, Legal aid funding: Current challenges and the opportunities of cooperative federalism, claims.


While acknowledging the matter is for the judgment of legal aid commissions rather than for the Commonwealth government, the report said the principle underlying the use of salaried lawyers is allowing a legal aid commission to require a specified level of service in return for an annual salary, rather than paying practitioners on per-service basis. 


"A lawyer paid an annual salary might be more likely to spend excessive time on individual cases rather than delivering greater volume of services. By contrast, a fee for service funding arrangement can have the opposite effect – encouraging throughput at the expense of diligence and quality," said the report.


As the report puts the use of private practice lawyers under threat, it also suggests giving greater choice to clients of legal aid in sourcing their legal representation. It takes from the English system as its inspiration. 


The English system mirrors the way in which clients select lawyers in privately retained civil cases, with the goal of fostering mutually positive attorney client relationships, the report said. 


"Since clients choose their solicitors, clients are believed likely to trust their solicitors, and, in turn, solicitors have a powerful incentive to represent clients conscientiously in order to obtain their repeat business, as well as referrals from others needing defence representation."


As well as the use of salaried lawyers to replace private practice lawyers, the reports suggests a turn to the lump sum incentive model of paying legal aid practitioners. 


"Its main advantages are that it can address the underlying problem of attracting skilled professionals into the industry with fewer of the drawbacks associated with a fee for service model," it said. 


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